UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) JILLIAN L. BROWN, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2456 (PLF) ) CHILDREN’S NATIONAL MEDICAL ) CENTER, et al., ) ) Defendants. ) ___________________________________ )

OPINION

This matter is before the Court on defendants’ motions to dismiss. For the

reasons discussed below, the motions will be granted in part and denied in part.

I. BACKGROUND

Plaintiff Jillian Brown, an African-American female, began her employment at

Children’s Hospital National Medical Center (“CNMC”), Emergency Medical Services for

Children (“EMSC”), National Resource Center (“NRC”), as a temporary employee in October

2002; she became a permanent employee, an Office Coordinator, in April 2003. Compl. at 8-9.

Among NRC’s employees were plaintiff’s direct supervisor, Edward Liao, id. at 9, Theresa

Morrison-Quintana, Partnership Outreach Team Leader, see id. at 2, Susan Eads Role, Director

of Partnerships and Public Policy, id. at 3, Jocelyn Hulbert, State Partnership Outreach

Coordinator, id. at 2, 10, and Kenneth Allen, id. at 5, Director of Program Planning and Training, id. at 22, to whom Morrison-Quintana and Hulbert reported, id. at 12.1 After Liao resigned in

July 2006, plaintiff assumed certain of his duties, including supervision of two Administrative

Assistants, Patricia Thompson and Nanette Pierre, both African American. Id. at 7-8. Plaintiff

then reported directly to the NRC’s Executive Director, Dr. Jane Ball. Id. at 9, 21.

In the fall of 2006, Dr. Ball announced her retirement effective at the end of that

year. Compl. at 10. According to plaintiff, Role and Allen “began pressuring [plaintiff] to join,

and later lead, a committee to align itself against Dr. Ball.” Id. Specifically, Role and Allen

intended to coerce Dr. Ball either to appoint one of them as the new Executive Director, or to

appoint both as Co-Directors, by threatening to accuse Dr. Ball of misappropriating federal

funds. Id. In furtherance of the plot, Role and Allen allegedly sought to obtain plaintiff’s

signature on a statement attesting to false allegations against Dr. Ball. Id. Plaintiff refused, and

instead reported these events to Kathryn Koepenick, the NRC’s Senior Human Resources

Consultant, in October 2006. Id. Apparently there was an investigation into Dr. Ball’s activities,

and in November 2006 she was “found . . . innocent.” Id. During the last week of December

2006, Dr. Ball allegedly warned plaintiff that she and Hulbert should “keep a low profile”

because Allen had them “on his radar.” Id. Dr. Ball allegedly shared her concerns with Tasmeen

Singh, who became NRC’s Executive Director as of January 1, 2007. Id.

On January 3, 2007, Singh requested a meeting with plaintiff to discuss

“accusations made against [her] by ‘many/several staff.’” Compl. at 12. Plaintiff was accused of

having said that Hulbert earned more than Morrison-Quintana, having forced Morrison-Quintana

1 Plaintiff has named Theresa Morrison-Quintana and Jocelyn Hulbert as defendants, as well as CNMC, Kathryn Kozpenick, and Tasmeen Singh.

2 to adjust her telecommuting schedule, and having behaved rudely to others because she was

dissatisfied with her job. Id. According to plaintiff, the events giving rise to these complaints

occurred several years earlier, see id. at 8; yet none had been raised with prior management

because plaintiff “was supposedly viewed as ‘intimidating and physically intimidating’ and a

‘favorite’ of [Dr.] Ball.” Id. During this meeting, Singh “made comments that made it obvious

that she was aware [plaintiff] had filed a charge of discrimination against a former employer

alleging racial discrimination.” Id. at 37. When plaintiff asked who had made complaints

against her, Singh responded that the complainant was Thompson, one of the administrative

assistants whom plaintiff supervised; other staff members allegedly confirmed Thompson’s

assertions. Id. at 12. Plaintiff later learned that Morrison-Quintana was her principal accuser.

See id. at 3, 14, 19.

Believing that “Dr. Ball’s fears were coming to fruition far sooner than [she]

expected,” on January 4, 2007, plaintiff called Hulbert to ask whether anyone had asked her

questions about plaintiff. Compl. at 13. Hulbert responded that, prior to January 3, 2007, Singh

“solicited feedback from her [about plaintiff],” and Hulbert had repeated “what she had heard”

from others. Id. Plaintiff allegedly warned Hulbert “to be careful because Dr. Ball . . . had the

same fears regarding . . . Hulbert.” Id.

On January 5, 2007, Singh and Koepenick informed plaintiff that she would be

suspended “for ‘bullying and intimidating’” Hulbert. Compl. at 13. Singh stated that “several

employees made allegations against [plaintiff],” and because “too many [were] saying the exact

same thing . . . an investigation would be conducted.” Id. Plaintiff believed that “she was being

subjected to a hostile work environment because one, or ‘many/several’ employees were making

3 false allegations against her, the fabricated allegations were only supported by gossip and

hearsay,” and that no one had any “intention of interviewing, question[ing] or speaking with [her]

to hear her side of the story.” Id. Rather, plaintiff “was already considered to be guilty of the

allegations,” id., and indeed was found “guilty of the allegations, additional transgressions,

and . . . was rude, had communication issues, was a bully, intimidating, physically intimidating,

confrontational, participates in unprofessional gossip discussions, and was retaliatory.” Id. at 14.

On January 11, 2007, plaintiff reported to the NRC “to learn of . . . the

investigative findings.” Compl. at 14. On that date, Singh issued a Final Written Notice to

plaintiff, id., which in relevant part stated:

[T]he notice is being issued because of concerns having to do with 1. intimidating conduct at the work place and 2. inappropriate communications of confidential information and 3. inappropriate conversations regarding other employees. As your manager, I have learned about this behavior through my investigation and through unsolicited complaints.

In response to these concerns and complaints, I spoke to you on January 3, 2007 to allow you the opportunity to respond and present your perspective. At the conclusion of this conversation I directed you not to have any conversations regarding our meeting with any staff member. However, the next morning it was brought to my attention that you called a staff member directly to ask if that individual had spoken to me regarding your performance and made comments to that individual about her own job security. As a result of this retaliatory and intimidating behavior, the decision was made to immediately remove you from the workplace by initiating a suspension pending the completion of the investigation. As part of that process, we gave you an opportunity to respond to the complaints made against you.

At this time, I have formally recommended that we lift the suspension so you can return to work. This notice is to provide you with clear expectations of the sorts of behaviors that are and are not permitted [, and plaintiff was instructed to] refrain from:

4 1. Conversations with employees about any NRC employee’s salary (including your own) or budget information or any other sensitive employment or contract information.

2. Unprofessional “gossip” such as discussions about who might get fired or warning employees that they are “next to go” or acting in other ways that lend themselves to a hostile work environment for those around you.

3. Making inappropriate remarks to co-workers regarding the reasonableness of compensation for NRC staff, the qualifications of employees for their pay grade and job duties, or the productivity of co-workers.

4. Being confrontational and/or intimidating in your demeanor including the use of an unusually loud tone or the use of physical gestures that may reasonably be construed as intimidating to any employee.

5. Retaliatory conduct against other employees who may have brought concerns about your conduct to the manager. This includes harassing dialogue with employees such as asking them directly whether they complained, engaging in conversations with any employee about what was said or the terms of the suspension or this final notice, or any other conversations related to the complaints brought against you.

* * *

It is expected that you demonstrate cooperative, courteous and professional behavior at all times. Any incidents of not responding to requests in a reasonable timeframe, or any other inappropriate actions/inaction or problematic communication is also not acceptable behavior under the terms of this notice.

While it is my sincere intention to work with you in good faith to overcome these performance issues, I need to be absolutely clear that failure to follow the instructions above, engagement in any form of retaliation or any continued performance problem will result in your immediate termination.

5 Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss [Dkt. #9] (“Pl.’s First Opp’n”), Ex. F (Final

Written Notice) at 1-2 (emphasis added).2

On January 16, 2007, plaintiff “filed a complaint with the EEOC and copied . . .

Singh, . . . Koepenick and the Human Resources Department on the complaint.” Compl. at 25;

see id. at 16, 33. The complaint took the form of correspondence to the Washington Field Office

of the Equal Employment Opportunity Commission (“EEOC”). Pl.’s First Opp’n, Ex. J (Letters

from plaintiff to EEOC dated January 15, 2007). After describing at length her suspension and

the Final Written Notice, plaintiff requested that the EEOC “review [her] submission and . . .

investigate this tangible employment action, discrimination/disparate treatment, retaliation,

harassment, and hostile work environment.” Id., Ex. J at J2 (page number designated by

plaintiff). Plaintiff submitted an additional letter to the EEOC. See id., Ex. K (Letter from

plaintiff to Hal Budnick, Intake Officer, Washington Field Office, EEOC, dated May 11, 2007).

The outcome of this exchange is not clear.

After these events, plaintiff allegedly no longer received group e-mail messages,

was not notified of mandatory training, was denied access to CNMC’s personnel policies and

was prevented “from utilizing CNMC’s Employee Complaint process to file internal grievances.”

Compl. at 24. Her workload was increased to include the taking of meeting minutes (previously

a task assigned to an employee at a lower grade), making photocopies, and covering the front

2 Singh allegedly “made comments that made it obvious that she was aware that [plaintiff] filed a charge of discrimination against a former employer alleging racial discrimination.” Compl. at 37. These comments may have been made either at the meeting during which the Final Written Notice was issued or at the time plaintiff was notified of her termination. According to plaintiff, both the disciplinary actions taken against her and her termination by RIF were “directly related to her prior protected activity.” Id.

6 desk when the receptionist was not available, while in other respects she was “stripped . . . of her

duties.” Id. at 25. For example, plaintiff no longer was responsible for processing and

reconciling check and travel requests, id. at 6, was denied access to files containing budget

information, id. at 8, was denied a master key which would have given plaintiff access to other

employees’ offices, id., and otherwise was “held up to all as an employee who could not be

trusted with keys, files, [and] confidential information[.]” Id. at 22. Singh allegedly “monitored

and questioned [her] every move, evaluated and reevaluated every task [she] performed,

micromanaged . . ., marginalized [her] within the department, effectively demoted [her] and

[became] an oppressive presence in [her] work environment.” Id. at 25.

Plaintiff took particular exception to the conditions set forth in the Final Written

Notice directing her to refrain from using a tone of voice or physical gestures that reasonably

could be construed as intimidating to any employee. In her view, this provision allowed her

coworkers “to construe [her] movements in any way that they saw fit,” and the terms “were

meant to humiliate [her] and to place her in a subservient position to her Caucasian coworkers.”

Compl. at 17. She believed that she “was prohibited from using body language,” and [e]ven

though communication is more nonverbal than verbal, [she] faced immediate termination if it

were construed that she used any body language.” Id. at 26. She was “in constant fear of losing

her job because the language of the Final Written Notice was so subjective that . . . any employee

could . . . accuse [her] of ‘being confrontational and/or intimidating in [her] demeanor[.]’” Id. In

addition, according to plaintiff, Singh, Koepenick and some of plaintiff’s co-workers allegedly

“used stereotypes,” describing her “as the loud black woman who rolls her eyes, was angry,

7 physically intimidated everyone, used body language, was a bully and had a problem

communicating.” Id. at 16.

Plaintiff’s employment came to an end on March 5, 2007, at which time Singh

and Koepenick informed her that, “[a]s a result of an internal evaluation of the administrative

personnel needs at the [NRC], the position of Office Coordinator [was] being eliminated.”

Compl. at 17. Pursuant to a reduction in force (“RIF”), four employees were terminated, three

African American (plaintiff, Thompson and Pierre) and one Caucasian. Id. at 3, 18. Three new

administrative positions were created, and the position of Staff Assistant “would assume all of

the prior responsibilities” of plaintiff and the two terminated African-American Administrative

Assistants. Id. According to plaintiff, NRC merely terminated her, changed the position title,

and transferred her responsibilities to a newly titled position, such that she “was terminated via a

pretextual RIF.” Id. Plaintiff deemed her termination by RIF the culmination of a series of

“numerous negative tangible employment actions,” Compl. at 19, designed to accomplish what

otherwise could not have occurred under the prevailing law. Pl.’s First Opp’n at 4-5.

On July 12, 2007, plaintiff filed a charge of discrimination with the EEOC. Mem.

in Supp. of Mot. to Dismiss [Dkt. #7-1] (“Defs.’ First Mem.”), Ex. A (Charge of Discrimination,

No. 570-2007-00866 dated July 12, 2007). According to the charge, plaintiff alleged that CNMC

discriminated against her on the basis of her race and in retaliation for prior EEO activity

between January 3, 2007 and March 13, 2007. Id., Ex. A. CNMC allegedly was responsible for

“Race-Based and Retaliatory Discrimination; Retaliation; Harassment; Intentional Infliction Of

Emotional Distress; Hostile Work Environment; Adverse/Tangible Employment Actions

(Heightened Scrutiny, Disparate Treatment, Decreased Responsibilities, Reprimand, Negative

8 Evaluation, Demotion, Discharge); Pretextual Argument For My Termination; Constructive

Termination; Actual termination (by way of the pretextual RIF[]).” Id., Attach. at 2.3 The EEOC

was “unable to conclude that the information obtained [during its investigation] establishes

violations” of the applicable employment discrimination statutes. Compl., Ex. A (Dismissal and

Notice of Rights dated September 23, 2009).

Plaintiff brings this action under Title VII of the Civil Rights Act of 1964 (“Title

VII”), as amended, see 42 U.S.C. § 2000e et seq., under

(“Section 1981”), and

under the District of Columbia Human Rights Act (“DCHRA”), see

et

seq. In addition, she brings common law claims of defamation, negligence, intentional infliction

of emotional distress (“IIED”), and wrongful termination in violation of public policy. Plaintiff

demands that any reference to her suspension and final written notice be expunged from her

personnel file, that each defendant send plaintiff a letter of apology, and that a letter of reprimand

be placed in each individual defendant’s personnel file. She also demands unspecified

compensation for past and future economic and non-economic losses.

II. DISCUSSION

A. Dismissal Under Rule 12(b)(6) of the Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure require that a complaint contain “‘a short

and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give

the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957));

3 Plaintiff attached to her EEOC complaint a four-page typewritten document called “Complaint-Particulars.”

9 accord Erickson v. Pardus,

(2007) (per curiam). Rule 12(b)(6) tests the legal

sufficiency of a complaint. See Browning v. Clinton,

(D.C. Cir. 2002). “To

survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009); Bell Atl. Corp. v. Twombly,

. A complaint must be

dismissed under Rule 12(b)(6) if it consists only of “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal,

.

On a Rule 12(b)(6) motion, the Court treats the factual allegations of a plaintiff’s

complaint as if they were true, and draws all reasonable inferences stemming from such factual

allegations in the plaintiff’s favor. See Erickson v. Pardus,

; Maljack Prods., Inc.

v. Motion Picture Ass’n of Am., Inc.,

(D.C. Cir. 1995). While the complaint is

to be “construed liberally in the [plaintiff’s] favor,” the Court “need not accept inferences drawn

by plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Kowal v.

MCI Commc’ns Corp.,

(D.C. Cir. 1994); see also Bell Atl. Corp. v. Twombly,

(stating that a court is “not bound to accept as true a legal conclusion couched as

a factual allegation”). Although “[a] pro se complaint . . . ‘must be held to less stringent

standards than formal pleadings by lawyers,’” Atherton v. D.C. Office of the Mayor,

(D.C. Cir. 2009) (quoting Erickson v. Pardus,

), cert. denied,

(2010), “a pro se complainant must plead ‘factual matter’ that permits the court to infer

‘more than the mere possibility of misconduct.’” Id. at 681-82 (quoting Ashcroft v. Iqbal,

).

10 B. Discrimination Based on Race

1. Title VII

Under Title VII, it is “an unlawful employment practice for an employer . . . to fail

or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of employment,

because of [her] race[.]” 42 U.S.C. § 2000e-2(a)(1). Nor may an employer discriminate against

an employee who has opposed an unlawful employment practice by making a charge, testifying,

assisting or participating in an investigation or proceeding arising from a violation of Title VII.

See 42 U.S.C. § 2000e-3(a). This language identifies “two elements for an employment

discrimination case: (I) the plaintiff suffered an adverse employment action (ii) because of [her]

race” or prior protected activity. Brady v. Office of the Sergeant at Arms,

(D.C. Cir. 2008).

Defendants represent that the complaint “goes on for pages concerning the alleged

harassing and retaliatory conduct [plaintiff] claims she experienced,” Defs. Children’s Nat’l

Med. Ctr. and Kathryn Kopenick’s Mem. in Supp. of Mot. to Dismiss (“Defs.’ Second Mem.”)

[Dkt. # 12-1] at 7, focusing on “her purported unfair treatment after . . . Singh became director of

her department in January 2007.” Id. at 7-8. Yet, defendants continue, plaintiff’s “allegations of

racial discrimination and retaliation are belied by her own factual assertions,” id. at 8, principally

those which “tie the alleged disciplinary action and purported hostile conduct . . . to her prior

relationship with the former department head,” id., her refusal to participate in a scheme to

appoint the new Director of the NRC, id., and retribution for supporting Dr. Ball. Id. at 9.

11 Defendants’ reading of the complaint is overly narrow and appears to ignore

plaintiff’s awkward but perceptible efforts to tie defendants’ adverse employment actions to her

race. For example, plaintiff alleges that she, “an African-American employee of . . . CNMC, was

treated in a manner different from her similarly situated coworkers, and was subjected to . . .

CNMC’s altering the terms and conditions of her employment.” Compl. at 15. She also alleges

that the RIF was a pretext for discrimination against her and other African American employees.

Id.; see id. at 17-19, 30. And with her assertion that “the disciplinary actions taken against her

and the termination of her employment from CNMC . . . [were] directly related to her prior

protected activity,” Compl. at 37; see id. at 25, 33, plaintiff manages to allege a claim of

retaliation in violation of Title VII. It matters not that plaintiff failed to “specifically mention

race-based discrimination until many pages into her Complaint.” Pl.’s Mem. in Opp’n to Defs.

Children’s Nat’l Med. Ctr.’s and Kathryn Koepenick’s Mot. to Dismiss [Dkt. #14] (“Pl.’s Second

Opp’n”) at 21.

As the Court construes the complaint, plaintiff alleges that defendants both

discriminated against her on the basis of her race and retaliated against her by suspending her, by

issuing a Final Written Notice, and by terminating her through a pretextual RIF. The complaint

is not a model of clarity; it is rambling, disorganized and repetitive. But it is also prepared by a

pro se plaintiff and its allegations must be construed liberally. See Haines v. Kerner,

(1972); Atherton v. D.C. Office of the Mayor,

. Notwithstanding the

imprecise and inartful drafting, plaintiff’s complaint goes beyond mere conclusory statements

and sets forth specific factual allegations that tend to support her causes of action. In other

12 words, the complaint does not “stop[] short of the line between possibility and plausibility of

entitlement to relief.” Ashcroft v. Iqbal,

.

Moreover, plaintiff’s obligation at the pleading stage is to put defendants on

notice of the claims against them and the bases on which they rest. Plaintiff accomplishes this

task; she need not plead all the facts she ultimately must prove in order to prevail on the merits.

See Atchison v. District of Columbia,

(D.C. Cir. 1996); see also

Swierkiewicz v. Sorema N.A.,

(2002) (“This simplified notice pleading

standard relies on liberal discovery rules and summary judgment motions to define disputed facts

and issues and to dispose of unmeritorious claims.”). Treating plaintiff’s factual allegations as if

they were true, and drawing all reasonable inferences stemming from such factual allegations in

her favor, the Court concludes that plaintiff adequately states a claim of discrimination based on

race and a claim for retaliation under Title VII. See, e.g., Winston v. Clough, No. 07-1411,

(D.D.C. May 11, 2010); Kornegay v. AT&T, No. 05-0001,

,

at *3 (D.D.C. Mar. 29, 2006) (“In other words, plaintiff claims that he was a qualified employee

terminated under false pretenses because of his race [or protected activity] and therefore he need

not plead all the elements of a Title VII race discrimination [or retaliation] claim in order to state

a claim.”) (brackets omitted).

The next question is who may properly be sued under Title VII. An employer is defined

under Title VII as “a person engaged in an industry affecting commerce who has fifteen or more

employees . . . and any agent of such a person.” 42 U.S.C. § 2000e(b). Ostensibly, then, a

complainant’s supervisors or co-workers may be considered the agents of an employer. But the

District of Columbia Circuit has rejected the notion that such individuals may be held personally

13 liable under Title VII. “[W]hile a supervisory employee may be joined as a party defendant in a

Title VII action, that employee must be viewed as being sued in his capacity as the agent of the

employer, who is alone liable for a violation of Title VII.” Gary v. Long,

(D.C. Cir. 1995) (citing Busby v. City of Orlando,

(11th Cir. 1991)), cert.

denied,

(1995). To the extent that plaintiff joins Singh, Morrison-Quintana,

Hulbert and Koepenick as defendants to her Title VII claims because of their status as agents of

the employer, these claims “essentially merge[] with her claim against [CNMC].” Id. Plaintiff’s

Title VII claims against Singh, Morrison-Quintana, Hulbert and Koepenick in their individual

capacities therefore must be dismissed. See, e.g., Laurent v. Bureau of Rehab., Inc.,

(D.D.C. 2008) (granting summary judgment for the individual defendants who may be

sued in their official capacities, not their individual capacities, under Title VII); Isse v. Am. Univ.,

(D.D.C. 2008) (dismissing Title VII claim against plaintiff’s immediate

supervisor); McMillan v. District of Columbia,

(D.D.C. 2006)

(dismissing Title VII claim against acting department chief in his individual capacity).

2. Section 1981

Section 1981 of Title 42 of the United States Code provides: “All persons within

the jurisdiction of the United States shall have the same right in every State and Territory to

make and enforce contracts . . . as is enjoyed by white citizens.”

(a). The

statute further “prohibits racial discrimination in the ‘making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the

contractual relationship.’” Pollard v. Quest Diagnostics,

(D.D.C. 2009)

14 (quoting

(b)). It is established that such contracts include employment

contracts. See Johnson v. Ry. Express Agency, Inc.,

(1975). To state a claim

under Section 1981, a plaintiff “must identify an impaired ‘contractual relationship’ . . . under

which [she] has rights,” Domino’s Pizza, Inc. v. McDonald,

(2006), and she

must allege “some facts that demonstrate that race was the reason for the defendant’s actions.”

Bray v. RHT, Inc.,

(D.D.C. 1990).

Defendants argue that, because the complaint fails to allege discrimination based

on race, it therefore fails to allege a Section 1981 claim. “Rather, [p]laintiff specifically alleges

that the conduct about which she complains stemmed from a power struggle within her

department and her support of the outgoing Executive Director.” Defs.’ Second Mem. at 9; see

Defs.’ First Mem. at 7. For the same reasons that the Court has concluded that the factual

allegations of plaintiff’s complaint support her Title VII claim, these same allegations necessarily

support her Section 1981 claim of discrimination based on race.

Because the complaint includes no express allegations as to the existence of a

formal, written contract or employment agreement between plaintiff and CNMC, the Court

presumes that plaintiff was an at-will employee of CNMC. Carl v. Children’s Hosp.,

(D.C. 1997) (Terry, J., concurring) (“This court has long and consistently adhered to the

rule that employment is presumed to be at will, unless the contract of employment expressly

provides otherwise.”). It is established that an at-will employee may maintain an action under

Section 1981. See Sheppard v. Dickstein, Shapiro, Morin & Oshinsky,

(D.D.C. 1999) (holding that Section 1981 covers at-will employment agreements because

“District of Columbia law . . . treat[s] at-will agreements as contracts”).

15 An employment discrimination claim brought under Section 1981 “mirrors, in

most ways, an employment discrimination claim brought pursuant to Title VII . . . . [But]

[u]nlike Title VII, individual liability can be imposed for personal involvement in discriminatory

activity that violates Section 1981.” Zaidi v. Amerada Hess Corp.,

(E.D.N.Y. 2010) (citations omitted). Moreover, “[i]ndividuals with supervisory authority . . .

may be held liable under [Section] 1981.” Tnaib v. Document Technologies, LLC,

(D.D.C. 2006) (citing cases); see also Sheppard v. Dickstein, Shapiro, Morin &

Oshinsky,

(finding that individual supervisors can be sued under Section

1981 and denying their motion to dismiss); see Page v. Winn-Dixie Montgomery, Inc.,

(S.D. Ala. 2010) (noting that “a claim for individual liability under [Section] 1981

requires an affirmative showing linking the individual defendant with the discriminatory

action.”). Therefore, under District of Columbia law, an at-will employee alleging discrimination

based on race may bring a Section 1981 claim not only against her employer but also against

those supervisors who take actions in violation of Section 1981. At this stage of the proceedings

and on the current record, the complaint sufficiently alleges a Section 1981 claim against all

defendants. Their motions to dismiss the Section 1981 claim will be denied without prejudice.

3. District of Columbia Human Rights Act

Under the DCHRA, it is unlawful for an employer “[t]o fail or refuse to hire, or to

discharge, any individual[,] or otherwise to discriminate against any individual, with respect to

[her] compensation, terms, conditions, or privileges of employment, including promotion; or to

limit, segregate, or classify his employees in any way which would deprive or tend to deprive any

16 individual of employment opportunities, or otherwise adversely affect [her] status as an

employee” on the basis of her race.

(a)(1). The term “employer” means

“any person who, for compensation, employs an individual,” as well as “any person acting in the

interest of such employer, directly or indirectly.”

(10). An individual

therefore may be held liable personally under the DCHRA if she is acting on behalf of an

employer. Wallace v. Skadden, Arps, Slate, Meagher & Flom,

(D.C. 1998)

(finding that the DCHRA applies to individual partners of law firm because the partners acted in

the interest of the employer, a law partnership); see Zelaya v. UNICCO Serv. Co.,

(D.D.C. 2008) (concluding that plaintiff’s former supervisor can be individually

liable under the DCHRA); Alston v. District of Columbia,

(D.D.C.

2008) (allowing claim under

for discrimination based on disability to

proceed as against agents of the District of Columbia Public Schools, an educational institution

covered by the DCHRA); MacIntosh v. Bldg. Owners and Managers Ass’n Int’l.

(D.D.C. 2005) (citing Wallace, denying motion of association’s Executive Director

and a Vice President to dismiss DCHRA claims against them in their individual capacities).

“The limitation period for a civil action brought pursuant to the [DCHRA] is one

year.” Jones v. Howard Univ.,

(D.C. 1990) (citing Davis v. Potomac Elec.

Power Co.,

(D.C. 1982)). “When a charge of discrimination is filed with

the EEOC in the District of Columbia, a claim is automatically cross-filed with the D.C. Office

of Human Rights (‘DCOHR’) pursuant to a ‘worksharing agreement’ between the two agencies.”

Ellis v. Georgetown Univ. Hosp.,

(D.D.C. 2009); Ware v. Nicklin Assocs.,

Inc.,

(D.D.C. 2008) (citing Estenos v. PAHO/WHO Fed. Credit Union,

17

(D.C. 2008)); see

(a)(4)(ii)(A). The timely filing of a

complaint with the DCOHR “toll[s] the running of the statute of limitations while the complaint

is pending,”

(a), and “the timely filing of a charge with the EEOC, and the

automatic cross-filing of a claim with the DCOHR that follows, is sufficient to toll the one-year

statute of limitations for filing a claim under the DCHRA.” Ellis v. Georgetown Univ. Hosp.,

(citations omitted). When plaintiff filed her complaint with the EEOC, she

named CNMC as the entity believed to have discriminated against her. The one-year limitations

period therefore was tolled as to CNMC.

Defendants Singh, Morrison-Quintana, Hulbert and Koepenick were not named as

respondents by plaintiff in her EEOC complaint. They move to dismiss plaintiff’s DCHRA

claims as untimely – she filed her lawsuit in December 2009, “more than 2 ½ years after the last

possible date that the purported discrimination or retaliation could have occurred.” Defs.’ First

Mem. at 9.4 Plaintiff counters that she timely filed her charge of discrimination with the EEOC,

and by doing so she “automatically co-filed” with the DCOHR. Pl.’s First Opp’n at 8; Pl.’s

Second Opp’n at 7-8. But plaintiff’s charge of discrimination did not name the individual

defendants as the parties responsible for the discrimination and retaliation she suffered. Plaintiff

cannot now proceed as against the individual defendants on DCHRA claims that were neither

brought within the one-year statute of limitations nor filed with the EEOC or the DCOHR. The

Court will dismiss without prejudice plaintiff’s DCHRA claims against defendants Singh,

Morrison-Quintana, Hulbert and Koepenick; these claims may proceed as against CNMC only.

4 Although defendant Koepenick does not move for dismissal of plaintiff’s DCHRA claims on this ground, the others’ argument applies equally to her.

18 C. Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress consists of “(1) extreme and outrageous

conduct on the part of the defendant which (2) either intentionally or recklessly (3) cause[d] the

plaintiff severe emotional distress.” Halcomb v. Woods,

(D.D.C. 2009)

(citing Larijani v. Georgetown Univ.,

(D.C. 2002)); see also The Cuneo Law

Group, P.C. v. Joseph,

(D.D.C. 2009); Evans v. District of Columbia,

(D.D.C. 2005). “To establish the required degree of outrageousness [to

sustain an IIED claim], the plaintiff must allege conduct so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.” Kerrigan v. Britches of

Georgetowne,

(D.C. 1997) (internal citations and quotation marks omitted).

This “very demanding standard” is “only infrequently met.” Dale v. Thomason,

(D.D.C. 1997). “Especially in the employment context, the standard is exacting.”

Evans v. District of Columbia,

. “[M]ere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities” cannot support an IIED claim, Halcomb v.

Woods,

(quoting Restatement (Second) of Torts § 46 cmt. d (1965)), and

termination is not conduct so extreme and outrageous that it exceeds the bounds of decency. See

Brown v. Sim, No. 03-2655,

, at *4 (D.D.C. Sept. 30, 2005); Elliott v.

Healthcare Corp.,

(D.C. 1993); see also Duncan v. Children’s Nat’l Med. Ctr.,

(D.C. 1997) ( “[G]enerally, employer-employee conflicts do not rise to the

level of outrageous conduct.”).

19 Plaintiff’s complaint includes a section titled “Intentional Infliction of Emotional

Distress,” see Compl. at 28-31, in which she describes how her co-workers “were watching [her]

movements” in order to determine whether her behavior or demeanor violated the terms of the

Final Written Notice, such that she “arrived at work each day expecting to be fired.” Id. at 28.

Defendants move to dismiss the IIED claim because the complaint alleges neither severe

emotional distress on plaintiff’s part nor conduct rising to the level of outrageousness necessary

to sustain an IIED claim. Defs.’ First Mem. at 9-11; Defs.’ Second Mem. at 10-12.

That plaintiff “was under a great deal of intentional pressure,” Compl. at 29, does

not adequately allege that she suffered severe emotional distress. Neither the scrutiny she

endured nor the prospect of immediate termination for a violation of the terms of the Final

Written Notice comprises conduct “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.” Bernstein v. Fernandez,

(D.C. 1991). The Court

concludes that the complaint fails to state an IIED claim. The claim therefore will be dismissed

as against all defendants. See Darrow v. Dillingham & Murphy, LLP,

(D.C.

2006) (allegations that office manager was stripped of her duties, blocked from access to billing

software, and employer’s placement of an advertisement for a new office manager did not state

an IIED claim); Crowley v. N. Am. Telecomm. Ass’n,

(D.C. 1997)

(allegations that employee “was subjected to contempt, scorn and other indignities in the

workplace by his supervisor and an unwarranted evaluation and discharge” fail to state an IIED

claim); Elliott v. Healthcare Corp.,

(employee’s discharge was not extreme and

outrageous as a matter of law).

20 D. Negligence

The basic elements of a negligence claim are that defendant owes plaintiff a duty

of care, defendant breached this duty and thereby caused plaintiff harm. See, e.g., District of

Columbia v. Harris,

(D.C. 2001). Defendants argue that the complaint fails to

state a negligence claim against them because it lacks allegations regarding a duty of care owed

to plaintiff. Defs.’ First Mem. at 12; Defs.’ Second Mem. at 13. Plaintiff counters that Singh

“owed at minimum[] a duty of fair treatment to [p]laintiff, Pl.’s First Opp’n at 16, as did

Koepenick. Pl.’s Second Opp’n at 23. Plaintiff does not articulate what this duty entails, and

instead appears to allege that, if there was negligence at all, the actual negligent party was

CNMC. See Compl. at 35-36.

Insofar as the conduct giving rise to plaintiff’s negligence claims is the same

conduct giving rise to her Title VII claims, the negligence claims appear to be duplicative.

Accordingly, the Court will dismiss the negligence claims without prejudice. See Wade v.

Washington Metro. Area Transit Auth., No. 01-0334,

, at *6 (D.D.C. June 27,

2005) (finding that negligence claim arising from defendant’s alleged failure to assure that

company’s “sexual harassment policies were not violated, and more specifically, to assure that

[p]laintiff was not subjected to a hostile work environment . . . is preempted by Title VII as the

injury arises out of the alleged harassment itself”); Crosten v. Kamauf,

(D.

Md. 1996) (dismissing common law negligence claims “to impose liability on [the employer] for

its alleged failure to conform to the dictates of Title VII in its efforts to prevent sexual

harassment, or to properly respond to a report of sexual harassment” because they “merely restate

the claim brought under Title VII”).

21 E. Wrongful Termination in Violation of Public Policy

As noted earlier, the Court presumes that plaintiff is an at-will employee. An

employer may discharge an at-will employee “at any time and for any reason, or for no reason at

all.” Holman v. Williams,

(D.D.C. 2006) (quoting Adams v. George W.

Cochran & Co.,

(D.C. 1991) (citations omitted)). Under District of Columbia

law, however, “wrongful termination in violation of a clear public policy is an exception to the

traditional at-will employment doctrine.” Bowie v. Gonzales,

(D.D.C.

2006) (citing District of Columbia v. Beretta, U.S.A. Corp.,

(D.C. 2005)).

“Whether a discharge violates public policy is determined on a case-by-case basis, guided by the

concept that a wrongful termination cause of action must be ‘firmly anchored in the Constitution

or in a statute or regulation which reflects the particular public policy being relied upon.’”

(quoting Warren v. Coastal Int’l Secs., Inc.,

(D.C. Cir. 2004)). For

example, discharge of an employee who refused to violate a statute – that is, forcing the

employee to choose between breaking the law and keeping her job – is considered a wrongful

discharge in violation of public policy. See Adams v. George W. Cochran & Co., Inc.,

.

Defendants maintain that to successfully invoke this exception, plaintiff must

point to a “fundamental public policy expressed in a statute, regulation, or constitution that

supports her position that she was wrongly terminated,” and she has failed to do so. Defs.’

Second Mem. at 14; see Defs.’ First Mem. at 13. Nor does plaintiff demonstrate a connection

between a public policy and the conduct which brought about her termination. Defs.’ First Mem.

22 at 13. For plaintiff’s failure “to state a viable wrongful termination claim against [d]efendants,

. . . such claims must be dismissed.” Defs.’ Second Mem. at 14.

Defendants are correct that the public policy exception to the at-will doctrine must

be “solidly based on a statute or regulation that reflects the public policy to be applied or (if

appropriate) on a constitutional provision concretely applicable to the defendant’s conduct.”

Holman v. Williams,

(quoting Carl v. Children’s Hosp., 702 A.2d at 163

(Terry, J., concurring)); see also Riggs v. Home Builders Inst.,

(D.D.C.

2002). Review of the complaint in this case reveals that the only policies allegedly violated were

CNMC’s internal personnel policies regarding employee discipline, grievances, equal

employment opportunity, harassment, and retaliation. Plaintiff identifies no public policy the

violation of which contravenes public policy, and therefore the complaint fails to state a wrongful

termination claim. See Davis v. Gables Residential/H.G. Smithy,

(D.D.C. 2007) (dismissing wrongful discharge claim “in the absence of any identified public

policy” or, alternatively, absent a showing of a “‘close fit’ between the policy and [plaintiff’s]

conduct”); Bowie v. Gonzales,

(concluding that, while “attempts to

strong-arm plaintiff into supporting [an employee’s] dismissal are not admirable actions, they do

not rise to the level necessary for a public policy violation supporting an exception to at-will

employment doctrine in a wrongful termination claim”).

F. Defamation

Plaintiff’s defamation claims arise principally from the comments Morrison-

Quintana allegedly made with respect to plaintiff’s performance and behavior issues occurring

23 prior to January 2007, see Compl. at 31-35, leading to plaintiff’s suspension and the issuance of

the Final Written Notice, see

. It appears, however, that plaintiff intends to bring

defamation claims against all defendants. See

.

Under District of Columbia law, “the right to maintain [an] action accrues . . . for

libel [and] slander” in one year.

(4); see Maupin v. Haylock,

(D.C. 2007); Oparaugo v. Watts,

(D.C. 2005). Defendants argue that

plaintiff’s defamation claims are time-barred, as all of the events giving rise to her defamation

claim arose either before January 3, 2007, or not later than her post-termination exit interview on

March 13, 2007. See Defs.’ First Mem. at 11; Defs.’ Second Mem. at 12. Plaintiff counters that

her defamation claims are timely for the same reasons that her DCHRA claims are timely. See

Pl.’s Second Opp’n at 23. “Even though the EEOC does not investigate claims of defamation,

those claims would fall under the DCHRA,” and the statute of limitations is tolled while the

EEOC completes its investigation.

Defamation is not an unlawful discriminatory practice under the DCHRA, and

plaintiff offers no alternative argument for the tolling of the one-year statute of limitations. Her

defamation claims, then, will be dismissed without prejudice as untimely. See DiLella v. Univ. of

the District of Columbia David A. Clark Sch. of Law,

(D.D.C. 2008)

(dismissing defamation claim filed 13 months after it had accrued); Nevius v. Africa Inland

Mission Int’l,

(D.D.C. 2007) (dismissing defamation claim filed nearly

seven months after statute of limitations had run).

24 G. Appointment of Counsel from the Civil Pro Bono Panel

The Court’s ruling on defendants’ dispositive motions resolves some, but not all,

of the legal claims plaintiff raises. On the assumption that this case will proceed to discovery,

the Court considers, sua sponte, whether counsel should be appointed to represent this plaintiff.

“The law is well established that there is no constitutional right to appointment of

counsel in a civil case,” Cookish v. Cunningham,

(1st Cir. 1986) (per curiam)

(citations omitted), and no indigent civil litigant is guaranteed counsel. Willis v. Fed. Bureau of

Investigation,

(D.C. Cir. 2001). The Court has the discretion, however, to

appoint counsel to represent an indigent pro se party under

(e)(1). Pursuant to

this authority, Local Civil Rule 83.11 provides:

When leave has been granted pursuant to

for a pro se litigant to proceed in forma pauperis, the judge to whom the case is assigned may, on application by the pro se party or otherwise, appoint an attorney from the Panel to represent such party. The appointment should be made taking into account:

(I) the nature and complexity of the action; (ii) the potential merit of the pro se party’s claims; (iii) the demonstrated inability of the pro se party to retain counsel by other means; and (iv) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel.

LCvR 83.11(b)(3); see Willis v. Fed. Bureau of Investigation,

(affirming

application of the factors set forth in the former LCvR 83.11(a)(4)(B) to decide a motion for the

appointment of counsel in a civil action brought under the Freedom of Information Act). The

Court has considered these factors and determines that appointment of counsel is warranted at

this time. All proceedings will be stayed pending entry of counsel’s appearance.

25 III. CONCLUSION

For the reasons discussed above, plaintiff’s Title VII and DCHRA claims against

defendants Singh, Morrison-Quintana, Hulbert and Koepenick in their individual capacities will

be dismissed. Because the complaint fails to state claims of intentional infliction of emotional

distress and wrongful termination in violation of public policy, these claims will be dismissed as

against all defendants. Plaintiff’s defamation claims as against all defendants will be dismissed

as untimely, and her negligence claims will be dismissed as duplicative of those brought against

CNMC under Title VII. Remaining, then, are plaintiff’s Title VII and the DCHRA claims

against CNMC, and her Section 1981 claims against all defendants. An appropriate Order

accompanies this Opinion.

/s/ PAUL L. FRIEDMAN DATE: March 30, 2011 United States District Judge

26